Lawyer Prevented from Telling Truth to Save Man

January 14, 2008

What if a lawyer knows the truth about what the prosecution did to obtain the death sentence of a man? What if the prosecution cheated to get that death sentence? Shouldn’t the lawyer be allowed to tell the truth to save the man?

Not according to a previous ruling. Leslie Smith, a Virginia lawyer, had to keep his secret for 10 years because the Virginia Bar Association ethics counselor ruled Smith could say nothing about the wrongful conduct of the authorities in securing the death penalty of Daryl Atkins for robbery-murder.

Now, the Virginia ethics counselor has changed its mind, so Leslie Smith has made public the facts of the prosecution’s misconduct 10 years ago. The result; Daryl Smith’s death sentence was commuted to a life sentence by a state judge in Yorktown, Virginia.

Why was lawyer Leslie Smith not allowed to reveal what he knew, and what did he know? Leslie Smith represented Daryl Smith’s co-defendant, William Jones. Leslie Smith attended his client’s interview by prosecutor, Cathy Krinick. As that interview proceeded, Krinick stopped William Jones, saying “Les, do you see we have a problem here?”. The problem was Jones’ version of the facts, as Jones was telling things, which was to implicate Daryl Smith as the triggerman in the crime.

Krinick then turned of the tape recording for 15 minutes, during which she coached William Jones on the version of testimony he should give to fit the physical evidence in the case, to make a better case for the prosecution. After prosecutor Krinick got William Jones properly prepared in what Jones should say, Krinick turned the tape recording back on and completed the interview.

Daryl Smith’s lawyers knew nothing about this “coaching” of William Jones when Daryl Atkins received the death penalty. Leslie Smith wanted to reveal this false testimony in the case, but Smith had an ethical duty to represent William Jones and to reveal the truth could conflict with the lawyer’s duty to represent the best interests of William Jones and only the interests of William Jones. Jones got a life sentence for his cooperation in helping convict Daryl Atkins.

Leslie Smith understood this possible conflict, so he asked the Virginia Bar Association for permission to reveal the truth ten years ago. The Virginia Bar Association ethics counselor told Smith he had an ethical duty to keep silent. This bothered Smith for 10 years, so Smith asked the ethics counselor again last year, and this time the ethics counselor changed its answer, allowing Leslie Smith to reveal his secret and save Daryl Atkins.

The prosecutor’s office denies the version Leslie Smith gives of the Daryl Atkins interview but does not explain why the interview which lasted from 4:15 pm to 6:16 pm contains only 1 hour and 45 minutes of material on the audiotape. The gap is there.

Did Leslie Smith save Daryl Atkins from execution? Very possibly, but there was another issue pending in the case, that of Daryl Atkins’ mental retardation. The United States Supreme Court had already ruled in this case in 2002 that the Constitution prohibits execution of the mentally retarded. The case was then sent back to Virginia to determine whether Atkins was in fact retarded. The prosecution claimed Atkins was not mentally retarded. Once the truth of Daryl Atkins’ interview was revealed and the Virginia judge commuted Atkins’ death sentence to life imprisonment, however, the issue of whether Atkins is mentally retarded makes moot this issue. Daryl Atkins is no longer under a death sentence.

This case is a good example of how complicated legal issues can be in criminal matters and a reminder of how important it is to seek legal help from a talented, experienced attorney with a reputation for high ethical standards. It’s possible that Atkins could have been executed if attorney, Leslie Smith had not been concerned with ethics to the extent to bring the matter to the ethics counselor a second time. Furthermore, it makes a difference when a lawyer who is considered professional and ethical presents such evidence to the court. The court is more likely to view the information as credible.

I guarantee that anyone facing a criminal charge will want his lawyer to be seen as competent, credible, honest, and ethical by the court. The accused person needs and deserves a fully competent and effective criminal defense.